Don't straitjacket the NSA

Privacy, protection and the NSA

December 20, 2013

The world has dramatically changed for those whose job it is to keep Americans safe. The first line of defense is no longer boots on the ground or fighter jets in the air. It's intel — the ability to ferret out the connections of people who would, say, try to set off a bomb in Times Square or Los Angeles International Airport.

At the center of this effort is the National Security Agency. The agency unfurls an astonishingly wide and robust electronic dragnet. For years it has amassed a trove of the records of all American phone calls — called "metadata" — and searched for links between people to identify terror suspects and their associates.

The once-secret program, revealed earlier this year, has stirred a furor that is playing out in the courts, Congress and the White House. On Monday, a federal judge ruled the NSA program was likely an unconstitutional invasion of Americans' privacy. On Wednesday a high-powered panel appointed by President Barack Obama urged the president and Congress to significantly curb the NSA's surveillance program.

We understand why some Americans believe the NSA is running roughshod over their privacy. Its information-gathering is vast. But there's much that we still don't know about the effectiveness or intrusiveness of this effort. America's security is at stake. That's good reason to be wary of quick, deep curbs on intelligence-gathering.

The NSA program has had the support of two presidents. It has been reviewed by the intelligence committees of Congress. Its investigative work has been authorized by judges on the secret Foreign Intelligence Surveillance Court (FISC).

Some NSA critics seized on Monday's federal court ruling as a landmark. It's not. It does set a path for a ruling on constitutionality by the U.S. Supreme Court. The high court ruled in 1979 that Americans do not have a reasonable expectation of privacy for their phone records because those records are made available to another party, the phone company. The court could find now that circumstances have changed, and set a new standard. But the NSA does appear to be in compliance with the 1979 decision.

Those task force recommendations? The panel urged Obama to end the bulk collection of domestic telephone records and reform the court that oversees the program.

The panel recommends that a third party, a phone company or another entity, hold bulk telephone records and that the NSA have access to that data only by court order. That sounds like a substantial burden that would put an end to fast, efficient data-mining in the hunt for terror plots.

The panel makes some sound recommendations. It wants more general transparency: Allow telephone and Internet providers to reveal what information they have been required to provide to the NSA. It wants to create an adversarial legal system by appointing a "public interest advocate to represent the interests of privacy and civil liberties" before the court. At the moment, the government asks for permission to get certain records or listen to certain conversations, and the judges decide whether to go along. They almost always do. There's no one to oppose the government, to argue the other side.

The task force recommends, and we've backed, an independent office of lawyers for FISC proceedings. That would help the court balance the competing interests and reassure Americans who worry that NSA is overstepping its bounds.

Most troublesome have been reports of NSA abuses of the law and secret court review system. In 2012, an internal NSA audit found the agency "has broken privacy rules or overstepped its legal authority thousands of times each year" going back to 2008, The Washington Post reported earlier this year. The New Yorker recently reported that the agency had been "repeatedly rebuked" by the FISC for violations of its own rules. That suggests changes are needed in the court review process. The FISC judges are supposed to keep the NSA in check.

Obama is expected to reveal in January what, if any, changes he will make in NSA practices. Congress will debate the panel's recommendations. In the meantime, let's hear more from folks who have first-hand knowledge, such as Sen. Dianne Feinstein, the California Democrat who heads the Senate Intelligence Committee. She has argued that NSA data-mining has substantial security value.

There are safeguards and there are straitjackets. Binding this nation's first line of defense against terror would carry substantial risk.